Posted on 04/20/2009 10:08:38 AM PDT by freedomwarrior998
Alice Marie Beard: The Ninth Circuit has apparently held, in the Nordyke case, that the Second Amendment is incorporated against the states via the Fourteenth Amendment; opinion to come shortly. I will certainly blog more when I can read the opinion.
Please note the possibility of error in all such breaking news stories, posted before the opinion is read; I will certainly correct any such error as soon as possible if it turns out the initial account is indeed mistaken.
Want to guess the reaction if I hauled a 12 pound Napolean around in my pickup?
Seems hard to believe from the 9th, but keep in mind that “even our own government could degenerate into tyranny” is nowhere more apparent than in San Francisco! These guys may be loony, but they see near anarchy out their front windows on a daily basis.
You don't know what you're talking about.
Go and actually read the Constitution.
The States are barely mentioned. At the time of ratification, the States already EACH had their own respective Bill of Rights, and they did not accept that the Federal Constitution would be applied to them--except in the places specifically noted, and to which they specifically assented by ratification.
Make a special note to read the Ninth and Tenth Amendments. These are the Amendments Madison believed to be the most important parts of the Bill of Rights in the US Constitution, and the Tenth Amendment recognizes that no unspecified power belongs to the Federal Government, and that all unspecified power belongs to the States FIRST, and to the people SECOND.
If, after reading this:
Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
You still cling to the silly idea that the Bill of Rights was intended to extend beyond a limitation of Federal Power, then please trouble yourself to read Amendment XI, the first one passed to repeal a Supreme Court decision which granted the People the power to sue a State:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
And if you still haven't disabused yourself of the ridiculous idea that the Bill of Rights was a limit to Federal power, consider this: at the time of ratification, several States had official STATE RELIGIONS, which the first Amendment forbids the Congress to establish. In fact, there were official State Churches in New England up until the time of the Civil War. The Bill of Rights could forbid Congress from having an official US Church, but it had NO POWER to keep a US State from doing so.
That restriction was not lifted until after the First Amendment was Incorporated by Amendment XIV; after the Civil War.
“You got some real rabid politicians there.” -Enterprise
That we do.
Is it any wonder that NY is high on the rabies infection scale?
Albany is a disease cluster.
“sweethearts all these anti gunners.”
They fear what they do not understand, and they do not understand our history, freedoms, or rights.
And thus must make any and all attempts to wrest freedom and liberty from those they seeth with hatred against.
Remember how the Left was shrieking about detention centers not so long ago?
Guess what, that’s what they want to do.
They’ve telegraphed everything on their agenda for the past eight years.
Gotta love NY...
*sigh*
I have. I've also read some 80% of Elliot's, quite a number of the letters the Founders wrote back and forth, and even some of the Con-Law text books of the time.
Here's a couple of interesting quotes for you:
"The whole of the Bill [of Rights] is a declaration of the right of the people at large or considered as individuals... It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of." - Albert Gallatin, October 7, 1789
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. Art 6 para 2
The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both. William Rawle on the Second Amendment
Huh... sounds like maybe the BoR protected the Rights of Citizens from not only Federal infringement, but from State infringements where specified.
Using the First Amendments wiggle room of "Congress shall make no law" to assume that the Seconds "Shall not be infringed", without qualifier, doesn't protect an Individual Right from ANY infringement at any level kinda misses the point.
In fact, it kinda plays right into the anti-gunners hands. Yer' not a Brady Buncher are ya Fred? 'Cause you sure as hell argue like one.
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How about being able to go to a gun show in New Jersey and actually being able to buy a gun.
And one would not expect the states to get much mention when the constitution is a blueprint for the general government- with limits necessary to keep it from becoming another tyrannical mess as others before it. These guys wanted to put a bridle on the horse team, not the dang driver.
the Tenth Amendment recognizes that no unspecified power belongs to the Federal Government, and that all unspecified power belongs to the States FIRST, and to the people SECOND.
Was the second ammendment not specific enough for you? Was it not SPECIFIC enough!! I suppose California is well within it's right then to deprive me of a 'right' to keep and bear arms according to this interpretation, as long as it's state constitution doesn't protect it (and it doesn't [see Feinstein, Schumer, collectivist, communitarian, feel-good, rub my nuts, corruption, etc.]).
The Fourth ammendment (which you say does not apply to the states) contains something like this:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,
So, Californians are not protected (again) from unreasonable searches and seizures per your interpretation, unless California has such a protection written into it's constitution. (At this juncture I'm tempted to ask 'Why would any state with half a brain sign on to a contract with a general government if they had it so good?'--"We're the last, freakin' word on everything, man!")
You still cling to the silly idea that the Bill of Rights was intended to extend beyond a limitation of Federal Power, then please trouble yourself to read Amendment XI, the first one passed to repeal a Supreme Court decision which granted the People the power to sue a State:
Big deal, it says as a Californian I can't sue Nevada through the federal courts. And neither can Nevadans- we're both screwed and must find another alternative. Again, big deal.(some battles between siblings the parents need not involve themselves with).
And if you still haven't disabused yourself of the ridiculous idea that the Bill of Rights was a limit to Federal power, consider this: at the time of ratification, several States had official STATE RELIGIONS, which the first Amendment forbids the Congress to establish.
As well it should, somebody had to get the religion monkey off everybody's back and if it came attached to Federal Highway Funds, they were quite prescient, weren't they?[Don't look now, but Global Warming is fast becoming a religion and the moment the Feds pass a 'remedy', well, there goes the 1st Ammendment. "Shut up and pay your cap and trade fee, beeyach." Can't wait to see the size of the plate they'll be passing around.]
I think this (1st A) is the biggest 'poke-in-the-eye' to the Feds to be found in the BOR.
American colonies needed a parent and they invented MommyDaddy US Government. But, there are some things you should never do to a child- and the Bill of Rights lists everyone of them. Some (you) say the states may do these things? Bad Mommy.
The Ninth Circus seems to be turning over a new leaf lately. They got the Savana Redding case right too.
however, as i have said, i would welcome the chance for law-abiding citizens of NYC to be able to carry. NYC gun laws are awful, imho. only cops and criminals have guns right now. the upper west side liberals would have us all believe that midtown would turn into the OK Coral.
With specific regards to the RKBA, my Commonwealth -- Pennsylvania -- has a stronger affirmation of this right than the Federal Constitution, and our Bill of Rights predates the Federal Constitution (as do the BoRs of many States.) Which is why the States were not in the least concerned that the Federal BoR was weaker in most cases than their own: it doesn't apply to them.
If any of what you were posting applied specifically to the Bill of Rights, the doctrine of Incorporation would not exist. Of course, it does exist and has existed in the breach since before the Civil War (when Justice Taney made it necessary), and it has been invoked numerous times in the 150 years since the XIVth Amendment was created.
Since you don't believe me, please believe Antonin Scalia, the best friend that the Second Amendment has in the Federal Courts. This is what he wrote in Heller, concerning Incorporation and earlier RKBA 2nd Amendment cases (emphasis mine):
With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.”
So, please: take your silly arguments and have them with the foremost conservative jurist in the country, not with me. Scalia is making it clear that the Heller decision applies only to DC, a Federal concern, and that the SCOTUS will need some State or municipality to bring suit in Federal Court in order to get the RKBA Incorporated. And I think he makes it pretty clear that this is what the Court is going to do.
I own lots of guns, am lifetime NRA, and believe as strongly in the RKBA as anybody on this board. But the current understood state of US law isn't simply what I wish it to be, and it doesn't even remotely resemble what you think it does.
And please also actually read what Rawles wrote, in part: "No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people."
What does that say? What does it actually say? Nothing about anyone but the Federal Congress.
Incorporation is a real doctrine of the Federal Courts. If what you are arguing were true, it would not exist: there would be no need for Incoropration if the Bill of Rights applied to the States. But it did not, until July 9th, 1868.
Keep reading dumbass...
"may be appealed to as a restraint on BOTH".
Don't stop reading when you think something agrees with you...
Incorporation is a real doctrine of the Federal Courts.
Incorporation was no part of any of the Debates in the Constitutional Convention, nor teh 1st or 2nd Congresses as chronicaled in Elliot's Debates.
Nope. It was something an activist court came up with to try and pull an end run around the 14th.
As I pointed out, the legislation used to add the BoR to the Constitution included an "incorporation" clause. Ratified by the States themselves, and they even debated this very point, they knew exactly what applied to whom.
Our Rights are our Rights. Saying they can't be infringed by the FedGov, but then infringable by the States, makes no sense at all. Those in the BoR are our COMMON heritage as US citizens.
Not even close. That the BoR in the Federal Constitution didn't apply to the States was settled in 1833. Amendment XIV was ratified in 1868. Furthermore, you've got it EXACTLY BACKWARDS. Incorporation is a theory of law which employs the XIVth Amendment, and does not try to "end run around it." At. All.
Gee, what about Mayor Daley?
Funny, George Washington, Thomas Jefferson, Albert Gallatin, George Mason, and all those other dead white guys must be wrong then?
You do know that the SCOTUS is as bound by the constraints in the Constitution as the States and the FedGov are? Or are you willfully ignorant of that one too?
People thought the world was flat for centuries, it didn't make them correct.
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